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United States v. Jara-Medina

United States District Court, D. Oregon, Portland Division

April 10, 2018



          Robert E. Jones, United States District Judge.

         This matter comes before the Court on Defendant Felix Jara-Medina's (Jara) Motion to Dismiss Indictment. (#25) For the reasons that follow, the Court GRANTS Jara's Motion.


         Jara is charged with Illegal Reentry having been ordered removed from the United States on two prior occasions. Jara's original order of removal occurred in February, 1998 following convictions for two felonies, Unlawful Use of a Weapon and Attempted Assault I in Multnomah County (1995), and a felony Possession of a Controlled Substance plus a misdemeanor DUII in Wasco County (1997). In 2011, Jara's 1998 removal order was reinstated and he was again ordered removed. This motion focuses on the 1998 removal order.

         Jara's first substantive hearing before an immigration judge (IJ) occurred on November 21, 1997, prior to his guilty pleas in the Wasco County case. (#26-2) IJ Warren advised Jara, a lawful permanent resident who appeared without a lawyer, that because his Multnomah County convictions were not aggravated felonies, he should apply for cancellation of removal under INA § 240A(a). The government agreed with IJ Warren who then instructed Jara how to apply for cancellation of removal. (#26-2, pp. 6-7).

         Jara applied for cancellation of removal (#26-5) and, on February 25, 1998, attended a hearing on his application. This hearing took place after Jara's guilty plea in Wasco County, Oregon to Felony Possession of a Controlled Substance, A different immigration judge, IJ Ayala, presided and Jara again appeared without a lawyer. Jara presented evidence about becoming a lawful permanent resident, his continuous residency in the United States, his seven United States citizen children, and his employment history including the payment of income taxes for 12 years. IJ Ayala requested documents concerning Jara's convictions. When Jara gave IJ Ayala the information about the Wasco County conviction, IJ Ayala denied Jara's application for cancellation of removal. He ruled that the Wasco County felony drug possession conviction constituted an "aggravated felony" under Section 101A (43)(B) of the Immigration Nationality Act, and, as such, disqualified Jara from cancellation of removal. After announcing his decision, IJ Ayala advised Jara of his right to appeal the decision to the Board of Immigration Appeals and instructed Jara how and when to file a notice of appeal. Jara did not appeal and was deported.

         Thereafter, Jara returned to the United States and was charged with Illegal Reentry (#1). Jara filed this motion to dismiss claiming that the prior deportation proceeding violated his right to due process of law and that he suffered prejudice as a result.


         A. Standards

         To convict a defendant of illegal reentry under 8 U.S.C. § 1326, "the government must prove that the alien left the United States under order of exclusion, deportation, or removal and then illegally reentered." United States v. Martinez, 786 F.3d 1227, 1230 (9th Cir. 2015). A defendant prosecuted under 8 U.S.C. § 1326 may collaterally attack the administrative proceedings underlying his predicate removal as fundamentally unfair pursuant to the Due Process Clause of the Fifth Amendment. United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987). To sustain a collateral attack under § 1326, a defendant must demonstrate that (1) he exhausted all administrative remedies available to him to appeal his removal order, (2) the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review, and (3) the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d). A removal order is "fundamentally unfair" if "(1) the defendant's due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result." Martinez, 786 F.3d at 1230.

         The Immigration and Nationality Act (INA) 8 U.S.C. ch. 12, as amended, provides that an alien who is convicted of an aggravated felony may be removed from the United States by the Attorney General. 8 U, SC § 1227(a)(2)(A)(iii). When "a prior removal order is premised on the commission of an aggravated felony, a defendant who shows that the crime of which he was previously convicted was not, in fact, an aggravated felony, has established both that his due process rights were violated and that he suffered prejudice as a result." Martinez, 786 F.3d at 1230.

         B. Exhaustion of Administrative Remedies

         Jara contends that IJ Ayala erroneously advised him that he was an aggravated felon and therefore not eligible for cancellation of removal. Because of this erroneous advice, Jara argues that his removal order was fundamentally unfair and so he should be excused for his failure to exhaust administrative remedies. So, the first issue I must determine is whether IJ Ayala erroneously advised Jara that his state felony conviction was an "aggravated felony."

         During the removal hearing, IJ Ayala acknowledged that Jam's conviction for possession of a controlled substance, a felony under Oregon law, would have only qualified as a misdemeanor had it been prosecuted in federal court. (#26-2, p. 17) IJ Ayala then misapplied the holding in Matter of L-G-,21 I. & N. Dec. 89 (BIA 1995), a case in which the Board of Immigration Appeals ruled that "a state drug offense may be considered a 'drug trafficking crime, ' and therefore an aggravated felony under section 101(a)(43) of the Act, only if it is punishable as a felony under the federal drug laws." Matter of L-G-, 21 I. & N. Dec. at 96 (emphasis supplied).[1] At the end of the hearing, IJ ...

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